What  is  Criminally  "Obscene"? 

W  SCIENTIFIC  5  rUD  )'()/■    THE  A  US  I  h'J)  HDK  I A  L 

"  TPS TS"  ()/■■(> h\<ici':.\'/  r  y. 

'j  iu-oDOkr;  si  ii i<( )i:di: k, 

oi   '>;.  l  .Asr  Fn  I'v-NiN'i  H  Strkki.  .\i  \\  \"()kk  City, 
Member  of  thr   3fedici)- l.et^u/  Sociefy  and  of  the  A' );,';-/•  Bai . 


This  Essay  was  a  part  of  tJic  proceedings  of  the  XI'  CONiiRES 
INTERNATIONAL  DE  MEDICINE^  SECTION 
XJ'l  MEDICINE  LEGALE,  held  at  Lisbon,  PortuQa/^ 
April,  igo6,  and  noic  repriiiied  from  the  Albany  Law  Jour- 
nal of  fiilv.  n,n6,  for  THE  FREE  SPEECH  /.FA(^,rF. 


lEx  ICtbrtfi 


SEYMOUR  DURST 


-t '  'Tort  nteuu/  ^rn^erja-m-      Je  Manhatarus 


When  you  leave,  please  leave  this  hook 

Because  it  has  heen  said 
"Ever'thing  comes  t'  him  who  waits 

Except  a  loaned  hook." 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


WHAT  IS  CRT^riXALLY  "OBSCENE"? 


This  essay  was  a  part  of  the  proceedings  of  the  XV  Congress  International  do 
Medicine,  section  XVI  Medicine  Legale,  held  at  Lisbon,  Portugal,  April,  V.m.  and 
also  published  in  the  Albany  Law  Journal  of  July,  1906. 

The  English  ParHament,  the  Congress  of  the  United 
States,  and  all  the  States  of  the  American  Union,  have  pen- 
alized "lewd,  indecent  and  obscene"  literature  and  art.  All 
this  legislation,  and  the  judicial  interpretation  of  it,  proceeds 
upon  the  assumption  (false  assumption,  as  I  believe)  that 
such  words  as  "obscene"  stand  for  real  qualities  of  literature, 
such  as  are  sense  perceived,  and,  therefore,  permit  of  exact 
general  definition  or  tests,  such  as  are  capable  of  universal  ap- 
plication, producing  abpolute  uniformity  of  result,  no  matter 
by  whom  the  definition  or  test  is  applied,  to  every  book  of 
questionable  "purity." 

Under  these  laws,  as  administered  in  England  and  Amer- 
ica, every  medical  book  which  treats  of  sex — and  many  which 
do  not — are  declared  criminal,  and  their  circulation  even 
among  professionals  is  a  matter  of  tolerance,  in  spite  of  the 
law,  and  not  a  matter  of  right  under  the  law.  The  infamy  of 
such  a  statute  has  induced  some  American  courts,  under  the 
guise  of  "interpretation,"  to  amend  the  statute  judicially,  so 
as  to  exempt  some  medical  book,  otherwise  "obscene,"  from 
being  criminal  if  circulated  only  among  some  professional 
men.  What  the  judicial  legislation  will  be,  must  always  de- 
pend in  each  case  upon  the  court. 

If  an  accurately  definable  character  of  the  word  "obscene" 
is  not  implied  in  all  our  laws  penalizing  the  "indecent."  then 
they  do  not  prescribe  a  uniform  rule  of  conduct,  and  are  there- 
fore beyond  the  power  of  anv  English  or  American  legisla- 
ture to  enact.  That  such  is  the  assumption,  is  further  evi- 
denced by  the  fact  that  no  legislative  definition  or  test  is  fur- 
nished, and  courts  assert  that  none  is  necessarv,  since  these 
are  matters  of  common  knowledge.  (o6  N.  Y.  4T0.) 

That  assertion,  T  believe,  is  based  upon  lack  of  psychologic 
intelligence,  and  it  is  here  intended  to  outline  an  argument  to 
demonstrate  its  falsitv.    Be  it  remembered,  that  this  is  a  ques- 


53 


tion  in  the  science  of  psychology.  It  is  not  a  question  of  ethics, 
nor  law,  nor  legislative  expediency,  but  ever  and  always  a 
matter  of  science,  which  must  underlie  all  these.  If  my  con- 
tention is  correct,  then  present  obscenity  laws  are  a  nullity, 
for  want  of  a  definition  of  the  crime,  and  for  the  non-existence 
of  that  which  the  statute  seeks  to  punish.  I  will  prove  that 
''obscenity"  is  ever  and  always  the  exclusive  property  and  con- 
tribution of  the  reading  mind. 

Nothng  will  be  herein  contended  for,  which  will  preclude 
the  passage  of  some  other  laws  designed  to  accomplish  some 
of  the  same  ends,  which  some  people  think  justify  our  present 
laws  against  ''impure"  literature.  To  illustrate :  Except  when 
done  by  parents,  guardians,  et  al,  it  could  be  made  a  crime 
to  sell,  or  transmit,  etc.,  to  any  person  under  the  age  of  con- 
sent, any  book  containing  such  word  as  "sex,"  or  any  picture 
of  the  sexual  mechanism.  In  such  a  law,  all  the  conditions  of 
the  crime  would  easily  be  prescribed  with  that  exactness, 
which  leaves  no  room  for  such  objections  as  I  am  now  going 
to  make  against  the  existing  statutes. 

Such  a  law  would  not,  and  should  not,  assume  to  decide, 
nor  authorize  a  jury  to  decide,  what  is  good  or  bad  literature. 
It  would  simply  assume  the  incompetence  of  children  to  judge 
for  themselves  what  information  they  desired,  and  at  the  same 
time  accord  that  rightful  liberty  to  adults. 

In  1661,  the  learned  Sir  Matthew  Hale,  "a  person  than 
whom  no  one  was  more  backward  to  condemn  a  witch  with- 
out full  evidence,"  used  this  language :  "That  there  are  such 
angels  (as  witches),  it  is  without  question."  Then  he  made 
a  convincing  argument  from  Holv  Writ,  and  added :  "It  is 
also  confirmed  to  us  by  daily  experience  of  the  power  and  en- 
ergy of  these  evil  spirits  in  witches  and  by  them."  (Annals  of 
Witchcraft,  by  Drake,  preface  XI.) 

With  the  same  assurance,  and  no  greater  ignorance  of 
science — as  we  hope  to  show — our  courts  now  affirm  that  the 
differential  tests  of  obscenity  "are  matters  which  fall  within 
the  range  of  ordinary  intelligence,"  and,  therefore,  "everyone 
who  uses  the  mails  .  .  .  must  take  notice  of  what,  in 
this  enlightened  age,  is  meant  bv  Mecencv,  puritv  and  chas- 
tity in  social  life,'  and  what  must  be  deemed  obscene,  lewd  and 
lascivious."  (U.  S.  vs.  Rosen  t6i  U.  S.  42.) 

This  appeal,  to  the  consensus  of  opinion  in  "this  enlight- 
ened age,"  has  been  made  in  support  of  everv  superstition 
that  has  ever  paralyzed  the  human  in^-ellect.   Tt  would  be  more 


54 


reassuring  if  judges  had  given,  or  would  give,  us  a  test  of 
obscenity,  in  terms  of  the  objective,  sense-perceived  quahties 
of  literature,  by  which  test  alone  we  could  unerringly  and  with 
unavoidable  uniformity,  draw  the  same,  exact,  unshifting  line 
of  partition  between  what  is  obscene  and  what  is  pure  in  liter- 
ature, no  matter  who  applies  the  test.  Until  they  furnish  such 
a  test  to  us,  their  dogmatic  assurance  that  "this  enlightened 
age,"  possessed  such  undisclosed  knowledge  of  standards,  is 
not  very  satisfactory.  Without  such  a  test,  there  is  no  uniform 
law  to  control  our  conduct,  nor  that  of  our  courts  or  juries. 

Whenever  one  affirms  that  obscenity  is  not  a  quality  of 
literature  or  art,  but  solely  a  contribution  of  the  unhealthy 
reading  mind,  and,  therefore,  opposes  the  obscenity  prosecu- 
tions, or  questions  any  other  sex-superstition,  he  is  promptly 
cowed  into  silence  by  an  avalanche  of  vituperation,  such  as 
"impure,"  "immoral."  "smut-dealer,"  "moral  cancer-planter." 
Such  epithets  may  be  very  satisfying  to  undeveloped  minds, 
but  they  will  not  commend  themselves  very  highly  to  any  per- 
son wishing  to  enlighten  his  intellect  upon  the  real  question  at 
issue.  Again  we  say :  This  is  a  matter  of  science,  which  re- 
quires fact  and  argument,  and  cannot  be  disposed  of  by  ques- 
tion-begging villification. 

The  courts  are  more  refined,  though  not  more  argumenta- 
tive nor  convincing,  in  their  manner  of  denouncing  dissenters. 
The  judicial  formula  is  this :  "When  such  matters  are  said  to 
be  only  impure  to  the  over-prudish,  it  but  illustrates  how  fa- 
miliarity with  obscenity  blunts  the  sensibilities,  depraves  good 
taste,  and  perverts  the  judgment."  (45  Fed.  Rep.  423.)  Again 
we  ask  for  fact  and  argument,  not  question-begging  dog- 
matism. The  statute  furnishes  no  standard  of  sex  sensitive- 
ness, nor  is  it  possible  for  any  one  to  prescribe  a  general  rule 
of  judgment,  by  which  to  determine  where  is  the  beginning 
of  the  criminal  "blunted  sensibilities,"  or  the  limit  of  "good 
taste,"  and  the  law-making  power  could  not  confer  this  legis- 
lative authority  upon  a  judge,  though  in  those  cases  all  courts 
are  unconsciously  presuming  to  exercise  it. 

Furthermore,  it  is  not  clear  that  "blunted  sensibilities"  are 
not  a  good  condition  to  be  encouraged  in  the  matter  of  sex. 
Who  would  be  harmed,  if  all  men  ceased  to  believe  in  the 
"obscene,"  and  acquired  such  "blunted  sensibilities"  that  they 
could  discuss  matters  of  sex,  as  we  now  discu<^s  matters  of 
liver  or  digestion. — with  an  absolute  freedom  from  all  lasciv- 
ious feelings?  Whv  is  not  that  condition  preferable  to  the  dis- 


55 


eased  sex-sensitiveness  so  often  publicly  lauded,  when  parad- 
ing in  the  verbiage  of  ''purity?"  If  preferable,  and  so-called 
"obscene"  literature  will  help  to  bring  about  such  ''blunted 
sensibilities,"  would  it  not  be  better  to  encourage  such  publica- 
tions? It  requires  argument  and  fact,  rather  than  "virtuous" 
platitudes,  to  determine  which  is  the  more  healthy-minded  at- 
titude toward  these  subjects.  I  plead  for  scientific  research, 
not  the  brute  force  of  blind  dogmatism  and  cruel  authority. 

Assuming  its  existence  as  a  quality  of  literature,  the  ju- 
dicial "tests"  for  detecting  the  presence  of  obscenity,  mani- 
fest such  extraordinary  ignorance  of  sexual  psychology,  that 
no  man  who  is  accused  can  reasonably  expect  to  escape  con- 
viction by  denying  the  character  of  his  book.  The  unfailing 
verdict  of  "guilty"  is  not,  as  some  flatter  themselves,  due  to 
the  wisdom  of  the  prosecutors,  but  is  wholly  due  to  the  judi- 
cial ignorance  of  science,  and  to  the  undefined  and  indefinable 
nature  of  the  oflfense.   Let  us  reason  together  about  this. 

If,  in  spite  of  the  argument  by  vituperation,  a  person  re- 
fuses, "with  humble  prostration  of  intellect,"  to  submit  to 
the  demands  of  moral  snobbery,  he  is  cast  from  the  temple  of 
"good  society"  into  jail.  Then  the  benighted  act  as  though 
by  their  question-begging  epithets  or  jail  commitment,  they 
had  solved  the  scientific  problem  which  is  involved.  Let  us  ex- 
amine if  it  is  not  as  true  of  obscenity  as  of  every  witch  that  it 
exists  only  in  the  minds  of  those  who  believe  in  it. 

My  contention  is  this:  "Obscenity"  is  not  an  objective 
fact,  not  a  sense-perceived  quality  of  literature  or  art,  but  is 
only  distinguishable  by  the  likeness  of  particular  emotions  as- 
sociated with  an  infinite  variety  of  mental  imasfes.  Therefore, 
obscenity  is  only  a  quality  or  contribution  of  the  viewing  mind 
which,  being  associated  with  some  ideas,  suggested  by  a  book 
or  picture,  is  therefore  read  into  it.  This  may  be  nroven  in 
many  ways,  and  among  these,  by  the  resultant  fact  that  "ob- 
scenity" never  has  been,  nor  can  be,  described  in  terms  of  any 
universally  applicable  test  consisting  of  the  sense-perceived 
qualities  of  a  book  or  picture,  but  ever  and  always  it  must  be 
described  as  subjective,  that  is,  in  terms  of  the  author's  sus- 
pected motive,  or  in  terms  of  dreaded  emotions  of  speculative 
existence  in  the  mind  of  some  supposititious  reader. 

With  some  knowledge  of  the  psychologic  processes  in- 
volved in  acquiring  a  general  conception,  it  is  easy  to  see  how 
courts,  as  well  as  the  more  ignorant  populace,  quite  naturally 
fell  into  the  error  of  supposing  that  the  "obscene"  was  a 

56 


quality  of  literature,  and  nut — as  in  fact  it  is — only  a  contribu- 
tion of  the  reading  mind.  By  critical  analysis,  \vc  can  exhibit 
separately  the  constituent  elements  of  other  conceptions,  as 
well  as  of  our  general  idea  of  the  "obscene.''  Uy  a  comparison, 
we  will  discover  that  their  common  element  of  unification  may 
be  either  subjective  or  objective,  huthermore,  it  will  appear 
that  in  the  general  idea,  symbolized  by  the  word  "obscene," 
there  is  only  a  subjective  element  of  unification,  which  is  com- 
mon to  all  obscenity,  and  that  herein  it  dilYers  from  most  gen- 
eral terms.  In  the  failure  to  recognize  this  fundamental  un- 
likeness  between  different  kinds  of  general  ideas,  we  will  dis- 
cover the  source  of  the  popular  error,  that  "obscenity"  is  a 
definite  and  definable,  objective  quality  of  literature  and  art. 

A  general  idea  (conception)  is  technically  defined  as  "the 
cognition  of  a  universal,  as  distinguished  from  the  particulars 
which  it  unifies."  Let  us  fix  the  meaning  of  this  more  clearly 
and  firmly  in  our  minds  by  an  illustration. 

A  particular  triangle  may  be  right-angled,  equilateral  or 
irregular,  and  in  the  varieties  of  these  kinds  of  triangles,  there 
are  an  infinite  number  of  shapes,  varying  according  to  the 
infinite  differences  in  the  length  of  their  boundary  lines,  meet- 
ing in  an  infinite  number  of  different  angles. 

What  is  the  operation  when  we  classify  all  this  infinite  va- 
riety of  figures  under  the  single  generalization  "triangle"? 
Simply  this :  In  antithesis  to  those  qualities  in  which  triangles 
may  be  unlike,  we  contrast  the  qualities  which  are  common  to 
all  triangles,  and  as  to  which  all  must  be  alike. 

These  elements  of  identity,  common  to  an  infinite  variety 
of  triangles,  constitute  the  very  essence  and  conclusive  tests 
by  which  we  determine  whether  or  not  a  given  figure  is  to  be 
classified  as  a  triangle.  Some  of  these  essential,  constituent, 
unifying  elements  of  every  triangle  are  now  matters  of  com- 
mon knowledge,  while  others  become  known  only  as  we  de- 
velop in  the  science  of  mathematics.  A  few  of  these  essentials 
may  be  re-stated.  A  plain  triangle  must  enclose  a  space  with 
three  straight  lines ;  the  sum  of  the  interior  angles  formed  by 
the  meeting  of  these  lines  always  equals  two  right  angles ;  as 
one  side  of  a  plain  triangle  is  to  another,  so  is  the  sine  of  the 
angle  opposite  to  the  former  to  the  sine  of  the  angle  opposite 
to  the  latter. 

These,  and  half  a  dozen  other  mathematical  properties  be- 
long to  every  particular  triangle  ;  and  these  characteristics,  al- 
ways alike  in  all  triangles,  are  abstracted  from  all  the  infinite 

57 


different  shapes  in  which  particular  triangles  appear ;  and  these 
essential  and  constant  qualities,  thus  abstracted,  are  general- 
ized as  one  universal  conception,  which  we  symbolize  by  the 
word  "triangle." 

Here  it  is  important  to  bear  in  mind  that  these  universal,  con- 
stituent, unifying  elements,  common  to  all  triangles,  are  neither 
contributions,  nor  creations,  of  the  human  mind.  They  are 
the  relations  of  the  separate  parts  of  every  triangle  to  its  other 
parts,  and  to  the  whole,  and  these  uniform  relations  inhere  in 
the  very  nature  of  things,  and  are  of  the  very  essence  of  the 
thing  we  call  a  "triangle." 

As  the  force  of  gravity  existed  before  humans  had  any 
knowledge  of  the  law  of  its  operation,  so  the  unifying  elements 
of  all  triangles  exist  in  the  nature  of  things,  prior  to  and  in- 
dependent of  our  knowledge  of  them.  It  is  because  these  uni- 
fying elements,  which  we  thus  generalize  under  the  word  "tri- 
angle," are  facts  of  objective  nature,  existing  wholly  outside 
of  ourselves,  and  independent  of  us,  or  of  our  knowledge  of 
their  existence,  that  the  word  "triangle'^  is  accurately  definable. 

We  will  now  analyze  that  other  general  term,  "obscene," 
reducing  it  to  its  constituent,  unchanging  elements,  and  we 
will  see  that,  in  the  nature  of  things,  it  must  remain  incapable 
of  accurate,  uniform  definition,  because,  unlike  the  case  of  a 
triangle,  the  universal  element  in  all  that  is  "obscene"  has  no 
existence  in  the  nature  of  things  objective.  It  will  then  appear 
that,  for  the  want  of  observing  this  difiference  between  these 
two  classes  of  general  terms,  judges  and  the  mob  alike,  errone- 
ously assumed  that  the  "obscene,"  like  the  "triangle,'^  must 
have  an  existence  outside  their  own  emotions,  and,  conse- 
quently, they  were  compelled  to  indulge  in  that  mystifying  ver- 
biage, which  the  courts  miscall  "tests"  of  "obscenity." 

First  of  all,  we  must  discover  what  is  the  universal  constit- 
uent, unifying  element  common  to  all  obscenity.  Let  us  begin 
with  a  little  introspection,  and  the  phenomena  of  our  every- 
day life.  We  readily  discover  that  what  we  deemed  "indecent" 
at  the  age  of  sixteen,  was  not  so  considered  at  the  age  of  five, 
and  probably  is  viewed  in  still  another  aspect  at  the  age  of 
forty. 

We  look  about  us,  and  learn  that  an  adolescent  maid  has 
her  modesty  shocked  by  that  which  will  make  no  unpleasant 
impression  upon  her  after  maternity,  and  by  that  which  would 
never  shock  a  physician.  We  know,  also,  that  many  scenes  are 
shocking  to  us  if  viewed  in  company,  and  not  in  the  least  offen- 

58 


sive  when  privately  viewed;  and  that,  amung  (hfferent  persons 
tliere  is  no  uniformity  in  the  added  condilKMis  which  change 
such  scenes  to  shocking  ones. 

We  see  the  plain  countynian  shocked  Ijy  the  decollete  gowns 
of  our  well-bred  society  women ;  and  she,  in  turn,  would  be 
shocked  into  insensibility  if,  especially  in  the  presence  of 
strange  men,  she  were  to  view  some  pastoral  scenes  which 
make  no  shocking  impressions  upon  her  rustic  critic.  The 
peasant  woman  is  most  shocked  by  the  "indecency"  of  the  so- 
ciety woman's  bare  neck  and  shoulders,  and  the  society  woman 
is  shocked  most  by  the  peasant  woman's  exhibition  of  bare 
feet  and  ankles,  at  least  if  they  were  brought  into  the  city 
woman's  parlor.  We  see  that  women,  when  ailment  suggests 
its  propriety,  quite  readily  undergo  an  unlimited  examination 
by  a  male  physician,  while  with  the  sexes  reversed,  much 
greater  difficulty  would  be  experienced  in  securing  submission. 
This  not  because  men  are  jnorc  modest  than  women,  but  be- 
cause other  social  conditions  and  education  have  made  them 
differently  modest. 

It  would  seem  to  follow  that  the  universal  qualities  which 
we  collect  under  the  general  term  "obscene,"  as  its  constituent, 
unifying  elements  are  not  inherent  in  the  nature  and  relations 
of  things  viewed,  as  is  the  case  with  the  triangle.  Taking  this 
as  our  cue,  we  may  follow  the  lead  into  the  realm  of  history, 
ethnology,  sexual  psychology  and  jurisprudence.  I'y  illustra- 
tive facts,  drawn  from  each  of  these  sources,  it  can  be  shown 
to  a  demonstration  that  the  word  "obscene"  has  not  one  single 
universal,  constituent  element  in  objective  nature. 

Not  even  the  sexual  element  is  common  to  all  modesty, 
shame  or  indecency.  A  study  of  ethnology  and  psychology 
shows  that  emotions  of  disgust,  and  the  concept  of  indecency 
or  obscenity,  are  often  associated  with  phenomena  having  no 
natural  connection  with  sex,  and  often  in  many  people  arc 
not  at  all  aroused  by  any  phase  of  healthy  sexual  manifesta- 
tion ;  and  in  still  others  it  is  aroused  by  some  sensual  associa- 
tions and  not  by  others ;  and  these,  again,  vary  with  the  indi- 
vidual according  to  his  age,  education  and  the  degree  of  his 
sexual  hyperaestheticism. 

Everywhere  we  find  those  who  are  abnormally  sex-scnsiiive 
and  who,  on  that  account,  have  sensual  thoughts  and  feelings 
aroused  by  innumerable  images,  which  would  not  tlnis  aflfect 
the  more  healthy.  These  diseased  ones  soon  develop  very 
many  unusual  associations  with,  and  stimulants  for,  their  sex- 


59 


thought.  If  they  do  not  consider  this  a  lamentable  condition, 
they  are  apt  to  become  boastful  of  their  sensualism.  If,  on 
the  other  hand,  they  esteem  lascivious  thoughts  and  images  as 
a  mark  of  depravity,  they  seek  to  conceal  their  own  shame  by 
denouncing  all  those  things  which  stimulate  sensuahty  in 
themselves,  and  they  naturally  and  erroneously  believe  that 
it  must  have  the  same  effect  upon  all  others.  It  is  essential  to 
their  purpose  of  self-protection,  that  they  make  others  believe 
that  the  foulness  is  in  the  offending  book  or  picture,  and  not 
in  their  own  thought.  As  a  consequence,  comes  that  persist- 
ence of  reiteration,  from  which  has  developed  the  "obscene" 
superstition,  and  a  rejection — even  by  Christians — of  those 
scientific  truths  in  the  Bible,  to  the  effect  that  ''unto  the  pure 
all  things  are  pure,"  etc.  We  need  to  get  back  to  these^  and 
reassert  the  old  truth,  that  all  genuine  prudery  in  prurient. 

The  influence  of  education  in  shaping  our  notions  of  mod- 
esty is  quite  as  apparent  as  is  that  of  sexual  hyperaesthesia. 
We  see  it,  not  only  in  the  different  effect  produced  upon  differ- 
ent minds  by  the  same  stimulants,  but  also  by  the  different 
effect  produced  upon  the  same  person  by  different  objects 
bearing  precisely  the  same  relation  to  the  individual.  When 
an  object,  even  unrelated  to  sex,  has  acquired  a  sexual  associ- 
ation in  our  minds,  its  sight  will  suggest  the  affiliated  idea, 
and  will  fail  to  produce  a  like  sensual  thought  in  the  minds  of 
those  not  obsessed  by  the  same  association. 

Thus,  books  on  sexual  psychology  tell  us  of  men  who  are 
so  "pure"  that  they  have  their  modesty  shocked  by  seeing  a 
woman's  shoe  displayed  in  a  shop  window ;  others  have  their 
modesty  offended  by  hearing  married  people  speak  of  retiring 
for  the  night ;  some  have  their  modesty  shocked  by  seeing  in 
the  store  windows  a  dummy  wearing  a  corset ;  some  are 
shocked  by  seeing  underwear,  or  hearing  it  spoken  of  other- 
wise than  as  "unmentionables ;"  still  others  cannot  bear  the 
mention  of  "legs,"  and  even  speak  of  the  "limbs"  of  a  piano. 
Surely,  we  have  all  met  those  are  afflicted  in  some  of  these 
ways  and  others  who  are  not. 

Since  the  statutes  do  not  define  "obscene,"  no  one  accused 
under  them  has  the  least  protection  against  a  judge  or  jury 
afflicted  with  such  diseased  sex-sensitiveness,  or  against  more 
healthy  ones  who,  for  want  of  information  about  sexual  psy- 
chology, blindly  accept  the  vehement  dictates  of  the  sexually 
hyperaesthetic  as  standards  of  purity.  But  whether  a  judge 
or  a  juror  belongs  to  either  of  these  classes,  or  rejects  their 

60 


dictum  as  to  what  is  pure  in  literature,  in  any  and  every  such 
event,  he  is  not  enforcing  tiie  kltcr  of  a  general  law,  but 
enacting  and  enforcing  a  particular  c.v  post  facto  law  then 
enacted  by  him  solely  for  the  particular  defendant  on  trial. 
What  that  law  shall  be  in  any  case  depends  on  the  experiences, 
education  and  the  degree  of  sex-sensitiveness  of  the  court,  and 
not  upon  any  statutory  specification  of  what  is  criminal. 

Among  the  more  normal  persons,  we  see  the  same  differ- 
ence as  to  what  is  ofifensive  to  their  modesty,  depending  al- 
together upon  whetlier  or  not  they  are  accustomed  to  the  par- 
ticular thing.  That  which,  through  frequent  repetition,  has 
become  common-place  no  longer  shocks  us,  but  that  which, 
though  it  has  precisely  the  same  relation  to  us  or  to  the  sen- 
sual, is  still  unusual,  or  is  seen  in  an  unusual  setting,  does 
shock  us. 

Some  who  are  passive  if  you  speak  of  a  cow,  are  yet 
shocked  if  you  call  a  bull  by  name.  In  the  human  species,  you 
may  properly  use  the  terms  "men''  and  "women,"  as  differen- 
tiating between  the  sexes,  but  if  you  call  a  female  dog  by 
name,  you  give  ofifense  to  many.  So,  likewise,  you  may  speak 
of  a  mare  to  those  who  would  take  liight  if  you  called  the  male 
horse  by  name.  With  like  unreason,  you  may  speak  of  an  ox 
or  a  capon  to  everybody,  of  a  gelding  to  very  many,  but  of  a 
eunuch  only  to  comparatively  few,  without  giving  ottense.  No 
one  thinks  that  nudity  is  immodest,  either  in  nature  or  in  art, 
except  the  nudity  of  the  human  animal ;  and  a  few  are  not 
opposed  to  human  nudity  in  art,  but  find  it  immodest  in  nature. 

The  Agricultural  Department  of  the  United  States  distri- 
butes information  on  the  best  methods  for  breeding  domestic 
animals,  and  sends  those  to  jail  who  advocate  the  higher  stirpi- 
culture,  for  the  sake  of  a  better  humanity. 

Likewise,  Prof.  Andrew  D.  White  tells  us  that:  "At  a 
time  when  eminent  prelates  of  the  Older  Church  were  eulo- 
gizing debauched  princes  like  Louis  XV.,  and  using  the  un- 
speakably obscene  casuistry  of  the  Jesuit  Sanchez,  in  the  edu- 
cation of  the  priesthood  as  to  the  relations  of  men  and  women, 
the  modesty  of  the  church  authorities  was  so  shocked  by  Lin- 
naeus' proofs  of  a  sexual  system  in  plants,  that  for  many  years 
his  writings  were  prohibited  in  the  Papal  States,  and  in  various 
parts  of  Europe  where  clerical  authority  was  strong  enough 
to  resist  the  new  scientific  current." 

Now,  education  has  so  reversed  public  sentiment,  that  one 
may  write  with  impunity  about  the  sexuality  of  plants,  which 

6i 


was  formerly  denounced  as  a  "Satanic  abyss but  men  have 
been,  and  would  be,  sent  to  jail  for  circulating  in  the  English 
language  the  books  of  Sanchez  and  others  like  him. 

It  thus  appears  that  the  only  unifying  element  generalized 
in  the  word  "obscene,"  (that  is,  the  only  thing  common  to 
every  conception  of  obscenity  and  indecency),  is  subjective,  is 
an  affiliated  emotion  of  disapproval.  This  emotion  under  vary- 
ing circumstances  of  temeprament  and  education  in  different 
persons,  and  in  the  same  person  in  different  stages  of  develop- 
ment is  aroused  by  entirely  different  stimuli,  and  so  has 
become  associated  with  an  infinite  variety  of  ever-changing 
objectives,  with  not  even  one  common  characteristic  in  ob- 
jective nature;  that  is,  in  literature  or  art. 

This,  then,  is  a  demonstration  that  obscenity  exists  only  in 
the  minds  and  emotions  of  those  who  believe  in  it,  and  is  not 
a  quality  of  a  book  or  picture.  We  must  next  outline  the  legal 
consequences  of  this  fact  of  science.  Since,  then,  the  general 
conception  ''obscene"  is  devoid  of  every  objective  element  of 
unification;  and  since  the  subjective  element,  the  associated 
emotion,  is  indefinable  from  its  very  nature,  and  inconstant  as 
to  the  character  of  the  stimulus  capable  of  arousing  it,  and 
variable  and  immeasurable  as  to  its  relative  degrees  of  inten- 
sity, it  follows  that  the  ''obscene"  is  incapable  of  accurate  defi- 
nition or  general  test,  adequate  to  securing  uniformity  of  re- 
sult, in  its  application  by  every  person,  to  each  book  of  doubt- 
ful "purity." 

Since  few  men  have  identical  experiences,  and  fewer  still 
evolve  to  an  agreement  in  their  ideational  and  emotional  asso- 
ciations, it  must  follow  that  practically  none  have  the  same 
standards  for  judging  the  "obscene,"  even  when  their  conclu- 
sions agree.  The  word  "obscene,"  like  such  words  as  delicate, 
ugly,  lovable,  hateful,  etc.,  is  an  abstraction  not  based  upon  a 
reasoned,  nor  sense-perceived,  likeness  between  objectives,  but 
the  selection  or  classification  under  it  is  made,  on  the  basis  of 
similarity  in  the  emotions  aroused,  by  an  infinite  variety  of 
images ;  and  every  classification  thus  made,  in  turn,  depends  in 
each  person  upon  his  prior  experience,  education  and  the  de- 
gree of  neuro-sexual  or  psycho-sexual  health.  Because  it  is  a 
matter  wholly  of  emotions,  it  has  come  to  be  that  "men  think 
they  know  because  they  feel,  and  are  firmly  convinced  because 
strongly  agitated." 

Being  so  essentially  and  inextricably  involved  with  human 
emotions,  no  man  can  frame  such  a  definition  of  the  word 

6^ 


"obscene"  either  in  terms  of  the  quahties  of  a  book,  nor  sucli 
that,  by  it  alone,  any  judgment  whatever  is  possible,  much  less 
is  it  possible  that  by  any  such  alleged  "test"  every  other  man 
must  reach  the  same  conclusion  about  the  obscenity  of  every 
conceivable  book.  Therefore,  the  so-called  judicial  "tests" '  of 
obscenity  are  not  standards  of  judgment,  but,  on  the  contrary, 
by  every  such  "test"  the  rule  of  decision  is  itself  uncertain, 
and  in  terms  invokes  the  varying  experiences  of  the  testors 
within  the  foggy  realm  of  problematical  speculation  about 
psychic  tendencies,  without  the  help  of  which  the  "test"  itself 
is  meaningless  and  useless.  It  follows  that  to  each  person  the 
"test,"  which  supposedly  is  a  general  standard  of  judgment, 
unavoidably  becomes  a  personal  and  particular  standard,  dif- 
fering in  all  persons  according  to  those  varying  experiences 
which  they  read  into  the  judicial  "test."  It  is  this  which  makes 
uncertain,  and,  therefore,  all  the  more  objectionable,  all  the 
present  laws  against  obscenity. 

This  general  argument  can  be  given  particular  verification 
by  a  study  of  history,  ethnology,  general  and  sexual  psychol- 
ogy, and  judicial  decisions,  until  we  have  produced  demonstra- 
tion amounting  to  a  mathematical  certainty  that  neither  nature, 
common  knowledge,  science,  nor  the  statute,  has  furnished,  or 
can  furnish,  any  tests  by  which  to  measure  relative  degrees  of 
obscenity,  or  to  fix  the  freezing  point  of  modesty,  as  with  a 
thermometer  we  measure  relative  heat  and  cold,  or  by  chemical 
tests  we  determine  the  presence  of  arsenic. 

If,  then,  neither  nature,  common  knowledge,  nor  the  stat- 
ute, furnish  so  exact  a  definition  of  the  "obscene"  that,  no 
matter  by  whom  applied,  it  must  uniformly  and  unerringly  fix 
the  same  line  of  partition  from  that  which  is  not  "obscene," 
and  if  scientific  research  has  furnished  no  tests  by  which,  with- 
out speculative  uncertainty,  we  may  with  mathematical  accur- 
acy classify  every  book  or  picture  which,  to  the  less  enlight- 
ened, would  seem  to  be  on  the  borderland  of  doubtful  "purity," 
then,  it  must  follow  that  no  general  rule  exists,  applicable  to 
all  cases,  and  by  which  we  can  or  do  judge  what  is  a  violation 
of  the  statutory  prohibition. 

The  so-called  "tests,"  by  which  the  courts  direct  juries  to 
determine  whether  books  belong  to  the  "indecent  and  obscene," 
are  a  terrible  indictment  of  the  legislative  and  judicial  intelli- 
gence, which  could  create  and  punish  a  mental  crime,  and  de- 
termine guilt  under  it  by  such  absurd  "tests."  Bereft  of  the 
magical,  mystifying  phrasing  of  moral  sentimentalizing,  the 

63 


guilt  of  this  psychological  crime  is  always  literally  determined 
by  a  constructive  (never  actual),  psychological  (never  mate- 
rial or  demonstrable),  potential  and  speculative  (never  a  real- 
ized) injury,  predicated  upon  the  jury's  guess,  as  to  the  prob- 
lematical "immoral  tendency"  (not  indicating  the  rules  of 
which  school  of  religious  or  scientific  morality  are  to  be  ap- 
plied) of  an  unpopular  idea,  upon  a  mere  hypothetical  (never 
a  real)  person.  No!  This  is  not  a  witticism,  but  a  literal 
verity,  a  saddening,  lamentable,  appalling  indictment  of  our 
criminal  code  as  judicially  interpreted. 

Under  a  law  of  such  vagueness  and  mystical  uncertainty, 
be  it  said  to  our  everlasting  disgrace,  several  thousand  per- 
sons in  America  have  already  been  deprived  of  liberty  and 
property;  unnumbered  others  have  been  cowed  into  silence, 
who  should  have  been  encouraged  to  speak;  and  almost  a 
score  have  been  driven  to  suicide. 

If,  then,  it  is  true  that  a  book  or  a  picture  can  only  be  clas- 
sified as  to  its  obscenity,  not  primarily  according  to  the  sub- 
stance of  that  which  it  reveals,  but  according  to  the  motions 
thereby  aroused,  then,  three  conclusions  irresistibly  follow: 
First,  there  is  no  general  test  of  obscenity  capable  of  produc- 
ing accuracy  and  uniformity  of  result  in  classifying  books ; 
second,  for  the  want  of  such  test,  there  never  can  be  a  convic- 
tion according  to  the  letter  of  a  uniform  law,  but  every  verdict 
expresses  only  a  legislative  discretion,  wrongfully  exercised 
after  the  act  to  be  punished,  and  according  to  the  peculiar 
and  personal  experiences  of  each  judge  or  juror;  and  it  is, 
therefore,  but  the  enactment  of  a  particular  law,  for  the  par- 
ticular defendant  then  being  tried,  and  applying  to  no 
one  else.  From  these  two  follows  the  third,  namely:  That 
no  man,  by  reading  the  statute,  can  tell  whether  a  particular 
book  is  criminal  or  not,  because  the  criminality  does  not  de- 
pend upon  the  statute,  but  upon  the  incompetent  jurors'  specu- 
lative opinion  about  the  psychological  tendency  of  the  book. 

It  is  inevitable,  from  such  an  indefinable  statute,  that  the 
determination  of  what  is  "obscene"  should  become  a  matter  of 
juridical  arbitrariness,  even  though  a  clouded  vision — as  to  the 
difference  between  judicial  interpretation  and  judicial  legisla- 
tion— should  induce  all  courts  to  deny  the  fact.  However, 
some  judges,  with  the  naivette  which  evidences  their  conscious- 
lessness  of  what  they  do,  quite  freely  admit  that  it  is  not  a 
matter  of  law,  but  a  matter  of  discretion,  which  determines 


the  cliaractcr  of  a  hook,  and,  therefore,  the  ■".^uilt"  of  its 
vendor. 

One  ju(lj;e.  after  fninhhnL;  with  those  definitions  of  ''oh- 
sccne" — which  dclinc  nothing  eonliniied  his  instructions  to 
the  jury  as  follows :  "These  are  as  precise  definitions  as  I  can 
^ive.  The  case  is  one  which  addresses  itself  larp^ely  to  your 
good  judc^nient,  common  sense,"  etc.  (38  Fed.  R.  733.) 

If  "obscenity"  means  definable  qualities  of  a  book,  how  can 
guilt  under  this  criminal  law  be  made  a  matter  of  "good  judg- 
ment," or  a  juror's  conception  of  what  is  "common  sense'' 
upon  the  subject?  The  "good  judgment"  is  for  the  legislature 
to  exercise  in  passing  the  law,  not  for  the  jurors  in  determin- 
ing its  meaning,  or  its  application. 

In  other  cases  jurors  are  instructed  that:  "If,  in  their 
judgment,  the  book  was  fit  and  proper  for  publication,  and 
such  as  should  go  into  their  families,  and  be  handed  to  their 
sons  and  daughters,  and  placed  in  boarding-schools,  for  the 
beneficial  information  of  the  young  and  others,  then,  it  was 
their  duty  to  acquit  the  defendant.  .  .  The  jury  were 
instructed  that  it  did  not  matter  whether  the  things  published 
in  the  book  were  true  and  in  conformity  with  nature  or  not." 
(Com.  V.  Landis  8  Phila.  453,  and  other  cases.) 

What  is  here  plainly  expressed  is  in  every  other  case  ne- 
cessarily implied,  because  the  statute  has  not  created  any  gen- 
eral rule  by  which  we  can  determine  what  is  against  the  law. 
Every  conviction  is  securable  only  by  an  exercise  on  the  part 
of  the  jury  of  a  legislative  discretion,  and  not  according  to 
standards  created  by  any  general  rule  by  which  we  can  determ- 
ine in  advance  what  is  and  what  is  not  prohibited,  which 
can  result  in  the  suppression  even  of  truth,  and  that  discretion 
is  personal  to  the  jurors,  and  always  this  particular  law  of  the 
jury  is  enacted  e.v  post  facto  at  the  trial  of  the  accused,  and 
not  before,  and  is  not,  and  cannot  be,  binding  upon  any  other 
jurors.  Since  the  legislative  power  cannot  be  delegated  to  a 
jury,  and  cannot  be  exercised  e.r  post  facto,  even  bv  the  legis- 
lature itself,  it  follows  that  our  present  laws  against  "ob- 
scenity" must  be  a  nullity,  and  will  yet  be  so  declared,  when 
this  argument,  properly  elaborated,  shall  be  presented  to  an 
intelligent  court. 

Nearlv  two  htmdred  vears  aco  ATontesnuieu.  in  viewing  the 
tvrannies  about  him,  wrote  thi<^ :    "In  despotic  cfovernment'; 
there  are  no  laws,  the  judge  himself  is  his  own  rule. 
In  republics,  the  very  nature  of  the  constitution  requires  the 

65 


judges  to  follow  the  letter  of  the  law.  Otherwise  the  law  might 
be  explained  to  the  prejudice  of  every  citizen  in  cases  where 
their  honor,  property  or  Hfe  is  concerned."  (Spirit  of  Laws, 
p.  8i.) 

Within  the  domain  of  literature,  we  have  unintentionally, 
through  psychologic  ignorance,  re-established,  that  irre- 
sponsible, arbitrary  absolutism  of  the  judiciary,  which  it  took 
many  ages  of  painful  struggle  to  abolish.  Shall  it  remain  and 
be  extended,  or  will  we  throttle  this  new  despotism?  Of  jur- 
isprudence it  is  said:  "Its  value  depends  on  a  fixed  and  uni- 
form rule  of  action.  From  what  has  preceded,  it  follows  that 
the  statutes  here  in  question  are  uncertain  beyond  all  possibil- 
ity of  being  made  uniform  guides  for  our  conduct.  As  has 
been  shown,  this  uncertainty  never  arises  from  any  doubt  as 
to  the  contents  of  the  book  to  be  judged,  but  the  uncertainty 
always  arises  solely  from  the  indefinable  nature  of  that  which 
the  statute  attempts  to  penalize. 

It  follows  that  convictions  can  only  be  had  as  antipathy  or 
afiFection,  caprice  or  whim,  on  the  part  of  the  jurors,  dictates 
the  result  of  their  deliberations.  For  each,  the  foundation  of 
his  judgment  of  guilt  is  his  personal  experience,  necessarily 
differing  from  the  experience  of  other  jurors,  who,  therefore, 
have  other  standards  of  judgment.  It  is  no  credit  to  the  intel- 
ligence of  the  bar,  that  these  matters  have  never  been  argued 
to  any  court.  AVhen  adequately  presented  to  an  intelligent 
judge,  with  psychologic  insight  and  an  open  mind,  all  present 
obscenity  legislation  will  disappear.  To  that  end,  such  a  judge 
will  do  his  plain  duty  by  applying  the  old  legal  maxim: 
"Where  the  law  is  uncertain  there  is  no  law." 

The  short  space  remaining  will  be  devoted  to  one  of  the 
many  illustrations,  which  in  this  class  of  cases  exhibit  the 
colossal  stupidity  of  judicial  tribunals  in  "this  enlightened 
age."  The  courts  of  America,  with  great  uniformity,  have 
followed  the  early  English  decisions  in  their  attempts  to  define 
obscenity.  Here  is  the  judicial  formula:  "The  statute  uses 
the  word  *lewd/  which  means,  having  a  tendencv  to  excite 
lustful  thoughts.  .  .  .  The  test  of  obscenity  is  this — 
whether  the  tendency  of  the  matter,  charg^ed  as  obscene,  is  to 
deprave  and  corrupt  those  whose  minds  are  open  to  such  im- 
moral influences  and  into  whose  hands  a  publication  of  this  sort 
may  fall." 

Here,  we  can  take  space  to  analvze  but  one  of  the  numerous 
absurdities  involved  in  this  "test  of  obscenity.'*   We  will  limit 

66 


ourselves  to  the  {)hrasc  ''those  whose  minds  are  open  to  such 
immoral  influences."  This,  of  course,  includes  those  who, 
through  lony-  sex-suppression  or  disease,  are  afllicted  with  the 
most  acute  sexual-h^perat  sthesia. 

Kraft-Ebing^,  among  many  biogra])hies  of  sexual  psycho- 
paths, gives  one  from  which  I  will  only  quote  a  single  para- 
graph. The  patient  says :  "The  thought  of  slavery  had  some- 
thing exciting  in  it  for  me,  and  alike  whether  from  the  stand- 
point of  master  or  servant.  That  one  man  could  possess,  sell 
or  whip  another,  caused  me  intense  excitement ;  and  in  reading 
'Uncle  Tom's  Cabin'  which  T  read  at  about  the  beginning  of 
puberty)  I  had  an  — r — ct — n."  f Psychopathia  Scxualis,  p. 
105,  from  the  translation  of  the  7th  German  edition.) 

The  explanation  is  not  difiFicult.  The  stirring  scenes  de- 
picted in  "Uncle  Tom's  Cabin"  produced  a  very  intense  gen- 
eral excitement,  which,  by  its  irritation  of  the — possibly  ab- 
normally sensitive  sex  nerve-centers,  produced  sexual  excite- 
ment. 

A  jury  of  experts,  knowing  this  and  kindred  facts,  and  ap- 
plying the  test  of  obscenity  and  lewdness  prescribed  in  prac- 
tically all  the  English  and  American  decisions,  must  conclude 
that  "Uncle  Tom's  Cabin"  is  an  obscene  and  lewd  book,  within 
the  statute.  Only  a  jury  very  ignorant  of  the  effect  of  such  a 
book  on  "those  whose  minds  are  open  to  such  immoral  influ- 
ences," could  render  a  verdict  of  "not  guiltv."  if  trying  a  per- 
son charged  with  the  "indecent  crime"  of  sending  "ITncle 
Tom's  Cabin'^  through  the  mails. 

But  the  courts  who  promulgated  such  stupiditv  as  a  "test" 
of  obscenity,  tell  us  that  this  is  "within  the  range  of  ordinary 
intelligence."  Yes,  so  exfraordwary  that  mv  vocabulary  is 
inadequate  for  the  occasion,  and,  therefore.  T  close. 

Theodore  Schroeder. 
63  East  5gth  Street,  New  York  Citv. 

"We  have  been  taught  to  ])elieve  that  it  was  the  greatest 
injustice  toward  the  common  people  of  old  Rome  when  the 
laws  they  were  commanded  to  obey,  under  Caligula,  were 
written  in  small  characters,  and  hung  upon  high  pillars,  thus 
more  effectually  to  ensnare  the  people.  How  much  ad- 
vantage may  we  iustly  claim  over  the  old  Romans,  if  our 
criminal  laws  are  so  obscurely  written  that  one  cannot  tell 
when  he  is  violating  them?    If  the  rule  contended  for  here 


67 


is  to  be  applied  to  the  defendant,  he  will  be  put  upon  trial  for 
an  act  which  he  could  not  by  perusing  the  law  have  ascer- 
tained was  an  offence.  My  own  sense  of  justice  revolts  at 
the  idea.  It  is  not  in  keeping  with  the  genius  of  our  insti- 
tutions, and  I  cannot  give  it  my  sanction.  *  *  *  'pj^g  [^i- 
dictment  is  quashed,  and  the  defendant  is  discharged."  Judge 
Turner  on  a  trial  for  depositing  an  obscene  sealed  letter  in 
the  Post  Office.  Dist  Court  West.  Dist.  of  Texas.  U.  S.  vs. 
Commersford  25  Fed.  Rep.  904. 


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